Citation Nr: 21023884 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 15-36 404 DATE: April 21, 2021 ORDER Service connection for a lumbar spine disability is granted. FINDING OF FACT The Veteran’s lumbar spine disability was incurred in service. CONCLUSION OF LAW The criteria for service connection for a lumbar spine disability are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1988 to October 1988 and from September 1990 to April 1991, with service in support of Operation Desert Shield/Desert Storm and in Southwest Asia from October 1990 to March 1991. She was awarded the National Defense Service Medal. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In February 2019, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. In June 2019, the Board remanded the issue for further evidentiary development. SERVICE CONNECTION Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for a recognized chronic disease can be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331; 38 C.F.R. §§ 3.303(b), 3.309. For chronic diseases shown as such in service or within the applicable presumptive period, subsequent manifestations of the same chronic disease at any later date are service-connected unless attributable to an intercurrent cause. 38 C.F.R. § 3.303(b). For a chronic disease to be considered to have been “shown in service,” there must be a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. When the condition noted in service or within the presumptive period is not a chronic disease, a showing of continuity of symptomatology after discharge is required. Id. Osteoarthritis and degenerative joint or disc disease of the lumbar spine is a chronic disease for VA purposes. 38 C.F.R. § 3.309(a). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of her current symptomatology. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau, 492 F.3d at 1376-77. The Veteran contends that service connection for a lumbar spine disability is warranted as a result of her duties in service. She reports that during her deployment in Operation Desert Storm, she hurt her back while lifting a generator and was sent to the field hospital in Saudi Arabia. She was provided with an x-ray examination, painkillers, and muscle relaxers at the time but has continued to experience back pain since that incident, which has worsened due to her employment. She stated that her job as an HVAC contractor is mostly sedentary now, pulling permits and meeting inspectors, but that occasionally she has to work with installation. She noted that she was unable to find medical records from the field hospital. Service treatment records reflect that the Veteran’s April 1991 Desert Storm demobilization examination is absent of evidence of treatment for or diagnoses of a lumbar spine disability. Post-service treatment records document complaints, treatment for, and diagnoses of low back pain and lumbar spine degenerative arthritis as early as August 2000. Pursuant to the June 2019 remand, the Veteran was afforded a VA thoracolumbar spine examination in December 2019. The Veteran reported that she had duties as a military police officer during service. She elaborated that when the ground war started, she was the convoy driver and was towing a generator when the generator axle broke. She stated that, along with others, they tried to lift the generator but were unable to lift it. She stated that she felt back pain immediately but tried to “push through the pain.” She further reported that she was sent to a field hospital later that night and she was provided with x-rays and prescribed muscle relaxers and ibuprofen and sent back to camp. She reported that this incident occurred approximately one month before being deployed back to the United Stated for discharge. The Veteran further endorsed that she has continued to have intermittent back pain when lifting, specifically items of 40 to 50 pounds. She stated that her low back pain has worsened in the past 10 years. The examiner diagnosed the Veteran with degenerative arthritis of the spine. The examiner opined that the Veteran’s lumbar spine disability was less likely than not related to service. To the extent that the VA examiner provided a negative nexus opinion, the Board finds the examiner’s reasoning convoluted, circular, and speculative as to potentially intervening causes and inadequate insofar as she did not address the Veteran’s reports of back pain that began during her deployment due to Operation Desert Storm but worsened throughout the years due to her currently employment. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). After review of the record, the Board finds that service connection for a lumbar spine disability is warranted. Turning to the third criterion, a nexus to service, the Veteran is competent to report certain types of in-service symptoms and injuries, which are capable of lay observation, such as low back pain. Layno v. Brown, 6 Vet. App. 465, 469 (1994); Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007); Charles v. Principi, 16 Vet. App. 370, 374 (2002). Here, the Board finds that the Veteran is competent to report that she first experienced low back pain in service, which she attributed to lifting a generator during Operation Desert Storm, and that her statements in this regard have been consistent from that time to the present. See Falzone v. Brown, 8 Vet. App. 398, 403 (1995). There is no reason to doubt the credibility of the Veteran’s reports, particularly given the consistency of the statements. Therefore, the Board finds that the Veteran has had continuous low back pain since service. The above reflects that the evidence before the Board as to the issue of whether the Veteran’s low back symptoms are related to service consists of credible lay statements indicating that the Veteran had a low back injury and treatment in service, and she has experienced signs and symptoms of a lumbar spine disability since that time. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006) (“[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself”). In these circumstances, a remand for a VA opinion on this issue could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304(c) (“The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination”); Mariano v. Principi, 17 Vet. App. 305, 312 (2003). As it is clear from a review of the evidence and argument of record that the Veteran developed a chronic lumbar spine disability in service, another formal nexus opinion is not required. See 38 C.F.R. § 3.303(a). Resolving doubt in favor of the Veteran, the claim of entitlement to service connection for a lumbar spine disability is granted. 38 U.S.C. §§ 1110, 5107; see generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). S.C. Krembs Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Bilstein, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.